Gonzaga Journal of International Law Volume 13 - Issue 2 (2009 - 2010)
A Call for Change: The Military Extraterritorial Jurisdiction Act
First Lieutenant James E. Hartney(fn*)
I. INTRODUCTION
Notwithstanding moral obligations, the inability to prosecute crimes negatively affects a state's international reputation. For over forty years, overseas crimes committed by American civilians accompanying the military went unpunished. The Military Extraterritorial Jurisdiction Act of 2000(fn1) ("MEJA") closed the gap. While this was the MEJA's original intent, it also established federal criminal jurisdiction over felony crimes committed overseas by former military members with absolutely no remaining ties to the service.(fn2) This paper will analyze the road to the MEJA and the first MEJA cases involving such former military members, and it will ultimately prove this aspect of the Act must be addressed by legislatures for the following reasons: 1) federal courts are ill-equipped to administer justice to this unique subset of United States citizens; 2) the MEJA was never intended to be used this way; and 3) the MEJA's inadequacy and a lack of alternatives requires that action be taken to ensure justice.
II. MEJA CASE LAW
Until the MEJA, federal criminal courts lacked jurisdiction to prosecute crimes of civilians overseas. In Toth v. Quarles, the defendant, Robert Toth, had been discharged for five months when he was arrested for murder,(fn3) but the courts prevented a court-martial and his crimes went unpunished.(fn4) While on patrol, he found a Korean national, brought him back to base and shot him based on an order from his superior.(fn5) Toth argued his lack of sufficient connection to the military prevented a court-martial.(fn6) In the Supreme Court's decision, Justice Black wrote, "[w]e hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution."(fn7)
As in Toth, Reid v. Covert (fn8) was also a challenge to military courts and their jurisdiction over civilians which, again, allowed civilians to literally get away with murder. In two separate cases,(fn9) Clarice Covert and Dorothy Krueger, both civilians, were charged with murdering their husbands.(fn10) Both of their husbands were military personnel accompanied by their wives and stationed overseas.(fn11) The military based its case on Article 2(11) of the Uniform Code of Military Justice ("UCMJ") for jurisdiction.(fn12) Under Article 2(11), cadets, aviation cadets and midshipmen are "[s]ubject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States...." (fn13) Both women argued Article 2(11) was unconstitutional.(fn14) Justice Black, again, wrote the opinion of the court: "under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States."(fn15) Years later, United States legislators demanded a solution in preventing the outcomes of the DynCorp scandal in Bosnia and U.S. v. Gatlin.(fn16)
In 2000, private civilian contractors working for DynCorp Inc. went unpunished for trafficking women in Bosnia.(fn17) An employee, Ben Johnston, reported of co-workers talking openly of owning young girls.(fn18) Kevin Werner admitted to "buying a prostitute and an illegal gun."(fn19) Separate investigations by the U.S. and Bosnia confirmed the reports; however, the men avoided prosecution.(fn20) Title 18 of the United States Code (Crimes and Criminal Procedure) prevented federal prosecution because of a lack of extraterritorial jurisdiction.(fn21) Furthermore, the Dayton Accords prevented prosecution by Bosnian courts.(fn22) The Accords state: The Parties [signatories of the treaty to include Bosnia] shall accord the IPTF [International Police Task Force] Commissioner, IPTF personnel, and their families the privileges and immunities described in Sections 18 and 19 of the 1946 Convention on the Privileges and Immunities of the United Nations. In particular, they shall enjoy inviolability, shall not be subject to any form of arrest or detention, and shall have absolute immunity from criminal jurisdiction.(fn23)
While section 19 relates directly to the immunity of the Secretary General and Assistants to the Secretary General, only Section 18 of the 1946 Convention on the Privileges and Immunities of the United Nations suffices to be mentioned: "[o]fficials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity."(fn24) Therefore, as members of the immune IPTF,(fn25) no court had jurisdiction over their crimes. If this case was not enough to invoke change, then U.S. v. Gatlin(fn26)was.
A civilian, Milton Gatlin, evaded prosecution for molesting his step-daughter while he and his enlisted wife resided on a U.S. military installation in Germany.(fn27) With his wife deployed to Bosnia, Gatlin began having regular sexual intercourse with his step-daughter, Claudia, over a period of at least four months.(fn28) Upon returning to the U.S., Claudia gave birth to a child confirmed to be fathered by Gatlin.(fn29) Gatlin pleaded guilty; but, similar to the Bosnia case, the U.S. federal courts lacked extraterritorial jurisdiction.(fn30) Justice Cabranes noted the lack of accountability in the justice system: Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a "jurisdictional gap"--that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States.... On more than thirty occasions, Congress itself has considered, but failed to act on, bills that would close the jurisdictional gap.(fn31) The court forwarded the opinion to legislative committees hoping to generate legislation to fill the gap.(fn32) Four months later, the Military Extraterritorial Jurisdiction Act of 2000 was born.(fn33)
The Act establishes jurisdiction over felony offenses committed by those "employed by or accompanying the Armed Forces outside the United States," and over "member[s] of the Armed Forces subject to chapter 47 of title 10" of the UCMJ.(fn34) The original act defines "employed by the Armed Forces outside the United States" as: (A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department) as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a subcontractor at any tier); (B) present or residing outside the United States in connection with such employment; and (C) not a national of or ordinarily resident in the host nation.(fn35) Upon approval of the Attorney General, jurisdiction is forfeited if the host government "has prosecuted or is prosecuting" the alleged acts.(fn36) The Act relinquishes jurisdiction over a military member "unless such member ceases to be subject to [the UCMJ]."(fn37) Three years later, the MEJA was put to the test.(fn38)
III. CLOSING THE GAP
Latasha Arnt, a civilian accompanying her husband, Staff Sergeant ("SSgt") Anthony Arnt, was found guilty of killing her husband during his tour in Turkey; and successful prosecution ensued.(fn39) After drinking at a friend's house, SSgt Arnt returned home where a verbal conflict began.(fn40) He slapped and choked his wife, and threatened to kill her if she left him.(fn41) The conflict moved to the kitchen where Arnt fatally stabbed her husband.(fn42) She was found guilty and sentenced to eight years in prison.(fn43) Upon appeal, the U.S. Court of Appeals confirmed adequate jurisdiction.(fn44)
While the Arnt case proved a victory for the MEJA, an unforeseen loophole remained. Incredibly, civilian contractors involved with the Abu Ghraib prison scandal in Iraq were never prosecuted. The Investigation of the 800th Military Police Brigade (the Taguba Report) notes that detainees were, among other things, forced to "masturbate themselves while being photographed and videotaped," and sodomized with various objects including a broom stick.(fn45) Twelve service members were indicted, yet Army Lieutenant Colonel ("LTC") Steven Jordan was the only officer, and the last, to go to trial.(fn46) Army Specialists ("SPC") Charles Graner and Lynndie England received the most severe punishments - ten and three years, respectively.(fn47) The Taguba Report notes two civilian contractors, Stephen Stefanowics and John Israel, from CACI International who played significant roles in the abuse.(fn48) Another civilian working as a translator for Titan Corporation, Adel Nakhla, was simply named a suspect.(fn49) Israel subsequently lied about his role in the interrogations and lacked a security clearance, required for sensitive operations of this type, needed to carry out such examinations.(fn50) Stefanowics made numerous false statements about specific interrogations and...
